Probate of a Will From Another State

The most common situation of, say, a California will, coming into Nevada's Probate Court is Ancillary Probate. In Ancillary Probate the out of state will is accepted by the probate court of another state, most of the probate takes place in that state and the Nevada Probate Court accepts the validation of the will by the court in the other state which accepted the will.

However, it occasionally happens that there is no probate in the other state. For example, suppose a Nevada resident with real estate in Nevada become ill and moves to and dies in California while being cared for by an adult child in California. Before dying in California the person might write a California will reciting that he or she is a California resident--because otherwise the California attorney probably won't write the will. Now, if the only real asset of the estate is the Nevada real estate, this California will is going to be probated only in Nevada.

This creates a problem for the Nevada Probate Court. How does the Nevada Probate Court know if this is a valid California will? For example, N.R.S. 133.050, Nevada's self-proving will statute, provides that if the two witnesses to a will sign an affidavit or declaration attesting to the signature of the will, and that the writer of the will appeared to be of sound mind and an adult, the Probate Court will accept the will as valid (unless there is a challenge.) Therefore, attorneys in Nevada have the witness signatures notarized. But, under California law, the California Probate Court does not require notarized signatures with the result that many California lawyers skip this step. In a recent case we had like this, the Clark County Probate Court wanted an opinion letter from a California lawyer that the California will was valid even though the witness signatures were not notarized.

Since three of us (Jonathan Reed and Douglas Reed and Daniel Reed) are licensed to practice law also in California, we can provide such an opinion letter. However, with respect to wills from other states which do not appear to meet Nevada's requirements, we would have to ask you or obtain for you an opinion letter from an attorney in the state in which the will was written that the will is valid in that state if the will did not meet the Nevada requirements.

Often the results will be the same under a will or the laws of intestate succession. See If You Die without a Will. In such a case we submit a Petition asking for distribution under the intestate laws, but attach the out of state will that doesn't meet Nevada requirements. In that situation we basically say, "Judge, it's easier to just treat this case as if there was no will and no harm is done since we get the same result whether or not we use the will."

Sometimes the question is: "I used to live in Kentucky and had a will written there; now that I am living in Nevada do I need to re-write the will?" If the will was valid when written in Kentucky, Nevada has a legal obligation to honor the Kentucky law. However, as a practical matter, if the will was not witnessed by two witnesses who signed the will and had their signatures notarized, it would be a good idea to have the will re-written in Nevada, even if the will was valid without these notarizations in the state in which it was written at the time it was written.

So far in this discussion I have assumed the will is typed in whole or part. A will that is written entirely by the will writer in his or her own hand and signed by that person is called a holographic will. No witness signatures are necessary.

Assuming a valid out of state will, the Nevada probate court will require either:

  1. The original will be filed in the Nevada court, and, if the out of state will would not be valid under Nevada, there must be some proof that the out of state will was valid in the state where it was written when it was written, or
  2. A certified copy of the will filed in a different state along with a certified copy of a court order from the different state admitting the will to probate along with a certified copy of the different state's Letters Testamentary or Letters of Administration.